Telangana High Court
Mr.Mohammed Mahmood And Another vs Mr.Syed Anwar Mustafa And 4 Others on 25 March, 2022
Author: G. Radha Rani
Bench: P Naveen Rao, G.Radha Rani
IN THE HIGH COURT OF JUDICATURE FOR THE STATE OF
TELANGANA
********
CITY CIVIL COURT APPEAL No.29 of 2019
Between:
Mr. Mohammed Mohamood S/o.Mohammed Ismail,
Aged about 31 years, Occ: Engineer,
Rep. by his GPA Holder Mohammed Ismail,
S/o.Late Mohammed Ibrahim, Aged about 54 years,
Occ: Business and another
.... appellants
And
Mr. Syed Anwar Mustafa S/o. Late Syed Masood Mustafa,
Aged about 48 years, Occ: Private Service,
R/o.20-4-104/22/1, Punch Mohalla Sana Cottage,
Hyderabad and others.
..... Respondents
The court made the following:
-2-
PNR,J&Dr.GRR,J
CCCA No.29 of 2019
HON'BLE SRI JUSTICE P.NAVEEN RAO
AND
HON'BLE SMT DR.JUSTICE G.RADHA RANI
CITY CIVIL COURT APPEAL No. 29 OF 2019
ORDER:(Per Hon'ble Dr. Justice G. Radha Rani) Heard Ms.B.Madhavi, learned counsel for the appellants and Sri Aadesh Varma, learned counsel appearing for the 1st respondent.
2. From the facts on record and as noticed by the trial Court, to the extent relevant are as under:
i. According to the 1st respondent, while he was working outside the Country, his wife was living in Hyderabad. He was sending the money earned by him to his wife to invest the same in landed property. By the money provided by him she purchased house property bearing H.No.8-1-366/A/72, admeasuring 200 Sq yards consisting of ground + two upper floors situated in Janaki Nagar, Tolichowki, Hyderabad, but it was registered in her name. When the 1st respondent returned to India he came to know this fact.
3. Contending that his request to register the property in his name was not agreed by his wife and she tried to alienate the property, the 1st respondent instituted O.S.No.1476 of 1997 in the Court of I-Senior Civil Judge, City Civil -3- PNR,J&Dr.GRR,J CCCA No.29 of 2019 Court, Hyderabad. He prayed to grant decree of declaration that he was the owner of suit schedule property and also sought injunction restraining the defendant i.e., his wife from alienating or encumbering the suit schedule property. During pendency of the above suit, temporary injunction was granted by the trial Court on 09.09.1997 in I.A.No.1754 of 1997 restraining the respondent therein from alienating the suit schedule property. An ex parte decree was granted on 04.11.1998. Wife filed I.A.No.3057 of 1998 seeking to set aside the ex parte decree, but the same was dismissed on 28.06.2005 and thereby the decree granted on 04.11.1998 had attained finality.
4. It appears, in violation of the temporary injunction, the respondent therein executed registered sale deeds on 17.09.1997 and 19.09.1997 in favour of the 3rd respondent herein. This compelled the 1st respondent herein to institute O.S.No.259 of 1999 arraying the respondents 2 and 3 herein as defendants and sought to grant decree of declaration that the said sale deeds executed by the 2nd respondent herein in favour of 3rd respondent as null and void and not binding. The 1st respondent herein also sought to declare that he was entitled for perpetual injunction restraining the defendants from interfering with his peaceful possession and enjoyment over the suit schedule house property. It appears, pending the above suit, the 3rd respondent who was the purchaser of house property from the wife of 1st respondent executed sale deed on 11.07.2000 and -4- PNR,J&Dr.GRR,J CCCA No.29 of 2019 12.07.2000 in favour of respondents 4 and 5. Thus, they were impleaded as defendants to O.S.No.259 of 1999. The said suit was decreed on 21.11.2007 granting the prayer sought by the plaintiff/1st respondent herein. It appears that during pendency of the suit, on 14.05.2004 the respondents 4 and 5 in turn executed sale deeds in favour of appellants herein.
5. As the decree was not implemented and possession was not restored to the plaintiff, the plaintiff/1st respondent herein instituted E.P.No.43 of 2013 in the Court of III Additional Chief Judge, City Civil Court, Hyderabad. Challenging the E.P. proceedings, seeking declaration that the decree granted by the trial Court in O.S.No.259 of 1999 is not binding on them, appellants herein filed E.A.No.64 of 2014. They also filed I.A.No.2 of 2019 under Order XXI Rules 98, 99 and 101 of Code of Civil Procedure, claiming that they were the absolute owners and possessors of the suit schedule property, having purchased the same under registered sale deed dated 14.05.2004 for valuable sale consideration. According to the appellants they were the bonafide purchasers and before their purchase, they had issued advertisement in the newspapers calling for objections. Since no objections were received, the sale transaction was completed and the sale deeds were executed in their favour. Therefore, the 1st respondent could not seek enforcement of the decree granted behind their -5- PNR,J&Dr.GRR,J CCCA No.29 of 2019 back. This contention was not found favour with the trial Court and the trial Court dismissed E.A.No.64 of 2014.
6. Aggrieved thereby, the appellants herein filed CCCA.No.21 of 2019 questioning the judgment and decree passed by the IX Additional Senior Civil Judge (V Senior Civil Judge), City Civil Court, Hyderabad in O.S .No.259 of 1999 dated 21.11.2007 along with leave petition CCCA (SR) No.3415 of 2009. This Court initially granted injunction as prayed in I.A.No.2 of 2019, but on due consideration of the matter in I.A.No.4 of 2019, the said injunction order was vacated and the I.A., was allowed. The Court is informed that aggrieved by the order in I.A.No.4 of 2019, the appellants filed SLP.No.25458-25459 of 2019 before the Hon'ble Supreme Court, but the said SLP was dismissed by the Hon'ble Supreme Court. The Court is also informed that the possession is restored to the 1st respondent and he is in possession as stands today. Having regard to subsequent developments, the C.C.C.A.No.21 of 2019 was dismissed by judgment dated 03.01.2022.
7. The appellants filed O.S No.92 of 2012 before the III Additional Chief Judge, City Civil Court, Hyderabad seeking declaration to declare the ex parte judgment and decree in O.S. No.1476 of 1997 on the file of I-Senior Civil Judge, City Civil Court, Hyderabad as not valid and binding upon them. As the -6- PNR,J&Dr.GRR,J CCCA No.29 of 2019 said suit is dismissed, they filed this appeal challenging the decree and judgment in O.S.No.92 of 2012 on the file of III Additional Chief Judge, City Civil Court, Hyderabad.
8. The trial Court framed the following issues on 23.09.2010, additional issues on 11.09.2014 and 07.04.2016.
23.09.2010 :
1) Whether the plaintiffs are entitled for declaration of decree dt.4.11.98 in O.S.No.1476/97 which is not binding and enforceable as sought by them ?
2) Whether the plaintiffs are in possession of plaint schedule properties ?
3) Whether the plaintiffs are entitled for relief of permanent injunction as sought by them ?
4) Whether the 1st defendant was in possession and enjoyment of plaint schedule property as contended by him prior to 5.5.2004?
5) Whether the Registered sale deeds obtained by plaintiff is hit lis pendence U/S.52 of Transfer of Property Act as contended by the 2nd defendant ?
6) To what relief, the plaintiffs are entitled to ?
11.09.2014 :
1) Whether the judgment and decree dt.21.11.2007 in O.S.259/1999 passed by IX Senior Civil Judge, CCC, Hyderabad can be cancelled and declared as null and void besides not binding and enforceable against them as prayed for ?
2) Whether the judgments and decree in O.S.1476/97 on the file of I-Sr. Civil Judge, CCC, Hyderabad and OS 259/99 dt.21.11.07 passed by IX Sr.Civil Judge, CCC, have jurisdiction to pass it ?-7-
PNR,J&Dr.GRR,J CCCA No.29 of 2019
3) Whether the judgment and decree passed by the Hon'ble High Court of A.P. in CCCA No.3415/2009 operates as res judicata ?
4) To what relief ?
07.04.2016 :
1) Whether defendant No.1 is prohibited under Benami
Transaction Act 1987 alleging to have purchased the suit property in the name of Defendant No.2 by virtue of Regd. Sale deed dt.7.8.1995 ?
2) Whether the judgment and decree in O.S.1476/1997 and O.S.259/1999 obtained by defendant No.1 against defendant No.2 are maintainable in view of bar under Family Courts Act ?
3) Whether the deletion of Sec.82 of Indian Trust Act effects the maintainability of the proceedings in O.S.1476/1997 ?
9. On behalf of the plaintiffs, 32 exhibits were marked and on behalf of defendants, 20 exhibits were marked and additionally Exs.X.1 to X.3 were marked through plaintiffs.
10. On assessing the evidence brought on record, the trial Court decided all the issues against the plaintiffs and dismissed the suit.
11. Aggrieved by the dismissal of the suit, the plaintiffs preferred this appeal contending that the judgments and decrees in O.S No.1476 of 1997 dated 04.11.1998 on the file of the I-Senior Civil Judge, City Civil Court, Hyderabad and O.S No.259 of 1999 dated 21.11.2007 on the file of the IX Additional -8- PNR,J&Dr.GRR,J CCCA No.29 of 2019 Senior Civil Judge, City Civil Court, Hyderabad were passed by the said courts without having jurisdiction. It was contended that the learned III Additional Chief Judge, City Civil Court, Hyderabad failed to see that the Family Court was having jurisdiction under Section 7(1) of the Family Courts Act, 1984. The pleadings in O.S. No.1476 of 1997 would clearly reflect that the 1st respondent pleaded about the family dispute in his plaint. The learned Judge erred in holding that no family dispute existed between the spouses as on the date of fling of the suit in O.S. No.1476 of 1997. He further contended that O.S No.259 of 1999 was hit by Order-II, Rule 2 CPC as the 1st respondent initially obtained judgment and decree dated 04.11.1998 in O.S. No.1476 of 1997 against his wife and subsequently, obtained judgment and decree dated 21.11.2007 in O.S. No.259 of 1999 on the file of IX Additional Senior Civil Judge, City Civil Court, Hyderabad against the 2nd respondent - wife and her purchasers. Both the judgments were hit by Section 82 of Indian Trust Act. The learned Judge failed to see that both the respondents No.1 and 2 colluded with each other because of which she deliberately became ex parte and failed to contest the matter and created third party rights in collusion with her husband to deprive the bonafide purchasers. Their marriage was subsisting by that time when the appellants raised the plea of family court having jurisdiction, the 1st respondent immediately created the theory that he divorced the 2nd respondent orally long -9- PNR,J&Dr.GRR,J CCCA No.29 of 2019 back when Talaqnama was obtained in collusion with the Qazi on 04.11.2013 stating that he gave Talaq-e-Bayan to the 2nd respondent. He further contended that the 1st respondent failed to get registration of both the judgments and decrees in O.S No.1476 of 1997 and O.S. No.259 of 1999 before the Registrar under Registration Act so that it would have been reflected in the encumbrance. As the 1st respondent failed to follow the mandatory procedure, the appellants were unable to discover the existence of the said dispute, otherwise they would not have purchased the said property. Learned counsel for the appellant further contended that the learned Judge failed to follow the guidelines given by this Court in CCCA (SR) No.3415 of 2009 and prayed to allow the appeal.
12. On hearing both the learned counsel for the appellants and the learned counsel appearing for the 1st respondent, the issues that arise for determination in this appeal are:
1) Whether the judgments and decrees passed by the I-
Senior Civil Judge, City Civil Court, Hyderabad in O.S No.1476 of 1997 dated 04.11.1998 and by the IX Additional Senior Civil Judge, City Civil Court, Hyderabad in OS No.259 of 1999 dated 21.11.2007 were without jurisdiction and would amount to nullity?
2) Whether the judgment in O.S. No.259 of 1999 is hit by order-II Rule-2 CPC in view of the judgment and decree in O.S No.1476 of 1997 dated 04.11.1998?
3) Whether the judgments obtained by the 1st respondent were hit by Section 82 of India Trust Act?
- 10 -
PNR,J&Dr.GRR,J CCCA No.29 of 2019
4) Whether the registered sale deeds obtained by the appellants were hit by lis pendens under Section 52 of the Transfer of Property Act as contended by the 1st respondent?
5) Whether the judgment in O.S. No.92 of 2012 by the III Additional Chief Judge, City Civil Court, Hyderabad, requires any interference by this Court?
13. ISSUE No.1:
The contention of the learned counsel for the appellants was that it was the family court which was having jurisdiction to decide the disputes but the said judgments were passed by civil courts which were not having jurisdiction, as such the same would amount to nullity. He contended that the learned III Additional Chief Judge, misunderstood the legal proposition and significance of Section 7(1) of Family Courts Act 1984 and misunderstood the authorities relied by him.
13.1. The Family Courts Act was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. From a perusal of the Statement of Objects and Reasons, it appears that the said Act, inter alia, seeks to exclusively provide within the jurisdiction of the Family Courts matters relating to the property of the spouse or either of them. Section 7 of the Act provides for the jurisdiction of the Family Court in respect of suits and proceedings as referred to in the Explanation
- 11 -
PNR,J&Dr.GRR,J CCCA No.29 of 2019 appended thereto. Explanation (c) appended to Section 7 refers to a suit or proceeding between the parties to a marriage with respect to the property of the parties or either of them.
13.2. The trial court observed that no family dispute was existing between the parties to attract the jurisdiction of family court as on the date of filing of the suit in OS 1476 of 1997 and the objection with regard to the jurisdiction of family court was not raised by defendant no 2 in OS 1476 of 1997. There were other defendants in OS 259 of 1999. The plaintiffs who were not parties to the said two suits could not raise the objection about the jurisdiction of the civil court in the facts and circumstances of the case.
13.3. The citations relied by the learned counsel for the appellants of the Hon'ble Apex Court in K.A. Abdul Jaleel v. T.A. Shahida1 and of the Division Bench of this court in A. Mannan Khan v. Judge, Family Court, Hyderabad, A.P. and another2, are pertaining to the issue, whether the divorced parties can maintain a petition before the family court but not with regard to whether a third party, a purchaser of the property from one of the spouse can contend that the dispute should be decided only by the Family Court. 1 2003 (3) ALD 114 (SC) 2 2001 (2) ALD 190 (DB)
- 12 -
PNR,J&Dr.GRR,J CCCA No.29 of 2019 13.4. The jurisdiction of the civil court is all embracing except to the extent excluded by the express provision of law or by the clear intendment arising from such law. Civil courts can try all suits, unless barred by a statue, either expressly or by necessary implication. A presumption lies in favor of the civil courts that they have jurisdiction to try all the suits. A person taking a plea contra must establish the same. Questions relating to disputed claims of parties for title to an immovable property can be decided only by competent civil courts. The objection as to the exclusion of civil courts jurisdiction for availability of alternative forum should be taken before the trial court at the earliest. No objection was taken by defendant no 2 against the defendant no 1, who was the plaintiff in OS No.1476 of 1997. The said suit was decided ex parte. OS No.259 of 1999 was filed by the defendant no 1 against the defendants No.2 to 5, the respondents no 2 to 5 herein. The defendants No.2 to 5 contested the said matter and filed written statements but none of them appeared to have taken the defense of maintainability of the suit by the civil court.
13.5. The appellants are plaintiffs in OS No.92 of 2012 on the file of III Additional Chief Judge, City Civil Courts, Hyderabad, who claimed to be bonafide purchasers from defendants No.4 and 5 who were also shown as defendants 4 and 5 in OS No.259 of 1999. They are now taking the plea that OS No.1476 of 1999 and OS No.259 of 1999 ought to have been tried by the Family
- 13 -
PNR,J&Dr.GRR,J CCCA No.29 of 2019 Court but not by the civil courts. When the parties to the said proceedings had not taken any objection as to the maintainability of the suits by the civil courts and allowed the proceedings to be continued which ended in judgments and decrees, it is not permissible for a third party to contend in a fresh suit that the above suits could not be tried by the civil court but by a Family Court.
13.6. Hence, we do not find any illegality in the observation of the trial court on this point that the appellants (plaintiffs) who were not parties to the said two suits could not raise the objection about the jurisdiction of the civil court. As such issue no 1 is answered against the appellants.
14. ISSUE No. 2:
The contention of the appellants was that the judgment in OS No.259 of 1999 was hit by Order - II Rule 2 CPC in view of the judgment and decree in OS No.1476 of 1997 dated 04.11.1998.
14.1. OS No.1476 of 1997 was filed by defendant No.1 against his wife, the defendant No.2 herein seeking declaration to declare him as a owner of the scheduled property. OS No.259 of 1999 was filed by defendant No.1 against his wife and 4 others for declaration and for recovery of possession and to declare the registered sale deeds dated 17-9-1997 and 19-9-1997 executed by defendant no 2 in respect of suit scheduled house as invalid, null and void and not binding
- 14 -
PNR,J&Dr.GRR,J CCCA No.29 of 2019 on him and to grant injunction restraining the defendants and their agents from interfering with his possession over the suit scheduled house and for the recovery of possession by evicting the defendants No.1, 2, 4 and 5 and to grant future mesne profits.
14.2. Thus the parties are not one and the same. The reliefs claimed are also not one and the same. In order to attract the bar under Order II Rule 2 CPC, the earlier suit should be founded on the same cause of action on which the subsequent suit is based, and if in the earlier suit, the plaintiff had omitted to sue in respect of or intentionally relinquished any portion of his claim, he would not subsequently be entitled to sue in respect of portion of his claim so omitted or relinquished. Where the cause of action and the parties also are different bar of Order II Rule 2 would not apply.
As such the judgment in OS No.259 of 1999 is not hit by Order II Rule 2 CPC and Issue No.2 is also answered against the appellants.
15. ISSUE No. 3:
The contention of the learned counsel for the appellants was that the judgments in OS No.1476 of 1997 and OS No.259 of 1999 were hit by Section 82 of The Indian Trusts Act.
- 15 -
PNR,J&Dr.GRR,J CCCA No.29 of 2019 15.1. Section 82 of The Indian Trusts Act is extracted hereunder:
"82. Transfer to one for consideration paid by another.
Where property is transferred to one person for a consideration paid or provided by another person and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration."
A reading of Section 82 shows that it relates to benami transaction. The same was repealed by Section 7(1) of the Benami Transaction (Prohibition) Act 1988.
15.2. In the case of benami transaction one person transfers consideration for the sale and gets the sale deed in the name of another person with an ulterior motive of secreting the property. Section 82 of the Indian Trusts Act creates a statutory obligation on the part of the transferee or legatee towards the transferor or testator or his legal representative. Such a statutory obligation was removed when the section is repealed. None of the said pleas were taken by the defendant No. 2 against her husband i.e. plaintiff in the both the above suits. Hence, we do not find any merit in the contention of the appellants that the above judgments were hit by Section 82 of The Indian Trusts Act or Section 2(a) of Benami Transaction (Prohibition) Act 1988.
- 16 -
PNR,J&Dr.GRR,J CCCA No.29 of 2019
16. ISSUE No.4:
The contention of the learned counsel for the 1st respondent was that the registered sale deeds obtained by the appellants were hit by the doctrine of lis pendens under Section 52 of Transfer of Property Act (for short 'TP Act').
16.1. Admittedly, the 1st defendant filed O.S. No.1476 of 1997 against the 2nd defendant, to declare him as owner of the suit schedule property and for injunction restraining the 2nd defendant, her agents, workmen from alienating the suit schedule house. He also filed IA No.1754 of 1997 for granting ad interim injunction restraining the defendant no 2 from alienating suit schedule house and the same was also granted in his favour on 09.09.1997. The 2nd defendant executed sale deeds document Nos.1963 of 1997 and 399 of 1995 dated 17.09.1997 and 19.09.1997 in favour of one Mohd. Wazid Ali in violation of the temporary injunction orders when the injunction was in force. The 1st defendant filed OS No.259 of 1999 to declare the registered sale deeds dated 17.09.1997 and 19.09.1997 executed by the 2nd defendant in favour of Wazid Ali as void abinitio and not binding on him and for perpetual injunction on 17.03.1999.
During the pendency of the said suit, Mohd. Wazid Ali executed two registered sale deeds bearing Nos.2155 of 2000 dated 11.07.2000 and 2160 of 2000 dated 12.07.2000 in favour of one Abdul Lateef Khan and one Smt. Nusrathunnisa Begum W/o.Abdul Lateef Khan. The 1st defendant impleaded them as parties in
- 17 -
PNR,J&Dr.GRR,J CCCA No.29 of 2019 OS No.259 of 1999. OS No.259 of 1999 was decreed on 21.11.2007. During the pendency of the said suit, the appellants herein purchased the schedule property from Abdul Lateef Khan and Smt. Nusrathunnisa begum vide registered sale deed document No.1864 of 2004 dated 14.05.2004.
16.2. Thus, several transactions were made by the defendants No.2 to 5 herein during the pendency of OS No.1476 of 1997 and OS No.259 of 1999 and all these transactions are bound by the doctrine of lis pendens. Section 52 of TP Act deals with the doctrine of lis pendens. Section 52 of the TP Act reads as under:
"52. Transfer of property pending suit relating thereto.--During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by [the Central Government] of [any] suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
Explanation.-- For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."
- 18 -
PNR,J&Dr.GRR,J CCCA No.29 of 2019 16.3. The doctrine of Lis Pendens is based on the maxim "pendente lite nihil innovetur." This means that pending litigation, nothing new should be introduced. It means that the person/party who initially succeeds in the litigation can ask the court to ignore any transfer or other dispossession of property by any party to the proceedings.
16.4. Learned counsel for the appellants contended that the appellants failed to get registration of the judgments and decrees in O.S No.1476 of 1997 and O.S .No.259 of 1999 before the Registrar, so that it would have come in the encumbrance certificate. In the absence of following the said procedure, the appellants were unable to discover about the pending dispute and otherwise they would not have purchased the said property. They also contended that they were bonafide purchasers.
16.5. The Hon'ble Apex Court in G.T. Girish v. Y. Subba Raju (Died) by L.Rs., and another [Civil Appeal Nos.380 and 381 of 2022, dated 18.01.2022] held that the pleas of bonafide purchaser or lack of notice are not defences available to the purchaser against the doctrine of lis pendens. Thus, the appellants cannot take the above pleas that the judgments were not registered which could have been a notice to them and that they were bonafide purchasers, to subvert the rights of the 1st respondent. There is no procedure of registering
- 19 -
PNR,J&Dr.GRR,J CCCA No.29 of 2019 the judgments and decrees as contended by the appellants. The judgment itself is a public document. As the appellants who are the pendente lite purchasers and are bound by the judgments of the Court during the pendency of which they purchased the said properties, the defences taken by them were not valid. Hence, issue No.4 is answered in favour of the respondents as against the appellants.
17. Learned counsel for the appellants further contended that the trial court had not followed the guidelines given by this Court in CCCA SR No.3415 of 2009, wherein this Court had given the appellants to relegate all the issues in the final decree proceedings and the suit below with regard to the legal questions raised by the appellants while challenging the judgment and decree in O.S. No.259 of 1999.
17.1. A perusal of the judgment in CCCA MP No.183 of 2009, CCCA MP SR No.3419 of 2009 and CCCA SR No.3415 of 2009 dated 13.07.2009 would disclose that no such observations are made by this Court and the said observations noted by the learned counsel for the appellants was with regard to the judgment of the Hon'ble Apex Court in Marirudraiah and others v. B. Sarojamma and others [2009 (3) ALT 61 (SC)] which was a suit for partition
- 20 -
PNR,J&Dr.GRR,J CCCA No.29 of 2019 and on the application filed by the subsequent purchasers in the appeal the observations of the Court were extracted and was held that:
"the Courts are not supposed to encourage pendent lite transactions and regularize their conduct by showing equity in their favour. In such circumstances, we are of the view that it is but proper to relegate all the issues in the final decree proceedings and in the case on hand the same is pending before the trial court."
17.2. This is not a matter of partition suit to have any preliminary or final decree proceedings. The suit is filed by the appellants (plaintiffs) to declare the judgment and decree in O.S .No.1476 of 1997 dated 04.11.1998 as not valid and binding on them. They cannot take the observations held by the Hon'ble Apex Court which was extracted by this Court in the above judgment as guidelines issued by this Court and contend that the said observations are binding on the court below. In fact, this Court had clearly held in CCCA SR No.3415 of 2009 that:
"The petitioners' vendors i.e. defendants 4 and 5 in the suit, purchased the property from the 1st defendant, who purchased the property while the suit O.S. No.1476 of 1997 was pending, wherein an injunction was in operation throughout the suit from alienation of respondent/plaintiff from the suit schedule property. Further, when the 1st respondent/plaintiff filed the suit O.S. No.259 of 1999 to declare the sale deeds as void, in disobedience to the injunction order passed by the civil Court and for recovery of possession, the second respondent/first defendant further alienated the suit schedule property in favour of 4th and 5th defendants in the suit, who in turn executed the sale deed in favour of the present petitioners."
- 21 -
PNR,J&Dr.GRR,J CCCA No.29 of 2019 It further observed that:
"Therefore, the pendent lite purchasers i.e. the petitioners herein cannot be impleaded in the pending suit to defeat the claim of the plaintiff and they cannot file an appeal questioning the correctness of the decree."
17.3. Thus, no guidelines were issued by this Court to be considered by the trial Court and this Court only observed that the said suit is to be decided uninfluenced by any of the observations made by the Court. Hence, we do not find any merit in the contention of the learned counsel for the appellants in this regard.
18. ISSUE No.5:
In the result, the appeal is dismissed upholding the judgment of the III-Additional Chief Judge, Hyderabad in O.S. No.92 of 2012 dated 05.11.2018.
No order as to costs.
Miscellaneous Petitions, if any pending, shall stand closed.
__________________
P. NAVEEN RAO, J
_____________________
Dr. G. RADHA RANI, J
Date: .03.2022
RDS/KTL